At least in the Air Force, the answer appears to be “yes.” In the case of United States v. Pugh, the United States Air Force Court of Criminal Appeals reversed the trial judge’s decision to dismiss court-martial charges against Major Pugh. Major Pugh was charged with use of drugs, and willful dereliction of duty by consuming Strong and Kind bars, both of which contain hemp seeds, in violation of AFI 90-507. While it is not entirely clear from the opinion, it appears Major Pugh was acquitted of the drug use charge, but convicted of violating Article 92, UCMJ.
After trial, but before the “authentication” of the Record of Trial, the military judge granted a defense motion to dismiss the charge, on the grounds that “that there is not a sufficient nexus between military necessity and duty AFI 90-507 seeks to impose. The regulation is overly broad and serves no valid military purpose.” After the military judge denied a prosecution motion to reconsider, the government appealed the decision to the Air Force Court of Criminal Appeals. On appeal, the Air Force Court reversed the trial judge, and reinstated the conviction. The court found that since it was possible for Kind or Strong bars with hemp seeds to lead to a “false positive” on a drug screen, there was a valid purpose in prohibiting its use by members of the Air Force. In legal terms, there was a “sufficient nexus” between the AFI and military duties.
I find this decision very troubling, and I hope the case gets reversed on appeal. There are a number of products that can cause “false positives” on a drug test, such as certain teas, and even some common foods. While there is no question that military members give up certain rights when they join the military (i.e. certain limitations on their speech) I am concerned when the military gets too involved in service member’s individual lives. Are they going to ban use of teas, bagels, etc? I understand the concern that service members may use the “Kind Bar” defense, but maybe this is why most services (except the Air Force) resolve drug cases administratively and not with a court-martial in most cases. Yes, there are cases like MAJ Eric Smith (USA (Ret.)), whom we represented and got his Court-Martial conviction reversed on appeal, but most of the time drug use cases don’t go to a court-martial.
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